C. F. Blanke Tea & Coffee Company v. Rees Printing Company

• Decision Date: 02 December 1903
• Docket Number: 13,187
• Citation: 97 N.W. 627,70 Neb. 510
• Parties: C. F. BLANKE TEA & COFFEE COMPANY v. REES PRINTING COMPANY
• Court: Nebraska Supreme Court

97 N.W. 627

70 Neb. 510

C. F. BLANKE TEA & COFFEE COMPANY v. REES PRINTING COMPANY

No. 13,187

Supreme Court of Nebraska

December 2, 1903

ERROR to the district court for Douglas county: WILLARD W SLABAUGH, JUDGE. Reversed.

REVERSED.

Stillman & Price, for plaintiff in error.

Nelson C. Pratt and Edward M. Wellman, contra.

DUFFIE C. KIRKPATRICK, C., concurs.

OPINION

DUFFIE, C.

Plaintiff in error is a corporation organized for the purpose of dealing in teas, coffees and other like articles, with its principal place of business in the city of St. Louis Missouri. Defendant in error is a corporation conducting a printing and lithographing business in the city of Omaha, Nebraska. Sometime prior to the year 1901, plaintiff in error contracted with Charles Spies & Co., a partnership doing business at Kansas City, Missouri, to give them the exclusive sale of its goods in certain states, including the state of Nebraska. Spies & Co. were not acting as the agent of the Blanke Tea & Coffee Co., but purchased goods from them direct, and sold them on their own account, the Blanke Tea & Coffee Co. agreeing not to sell to any other parties in the territory given to Spies & Co., while Spies & Co. agreed to buy all of their goods of the Blanke Tea & Coffee Co., their business of jobbing such goods in the territory set apart to them being, as we understand from the evidence, entirely at their own risk and expense. About February, 1901, Spies & Co. employed one J. W. Johnson to sell goods for them in Nebraska on commission. His power extended no further than to take orders for goods, which were submitted to Spies & Co. for acceptance or rejection, as they might find the sale desirable or not. In August, 1901, Johnson gave the Rees Printing Co. a written order for five thousand advertising pamphlets called "Rinehart's Indian Books," which Rees & Co. were publishing, and in which a number of the business men of Omaha had ordered advertisements. One page of this pamphlet was to contain an advertisement of the Blanke Tea & Coffee Co. and the portrait of C. F. Blanke, the president. The order is as follows: "Omaha, August 21, 1901. Rees Printing Co. Please furnish me five thousand Indian Books for which we agree to pay the sum of $ 100 upon delivery of goods. Your advertisement to run in fifty thousand books. J. W. Johnson, Agt. C. F. Blanke Tea & Coffee Co."

On account of some trouble between them, Johnson was discharged by Spies & Co., and the books not having been paid for, the Rees Printing Co. commenced an action in attachment to recover the amount. Judgment went in favor of the plaintiff below, and the Blanke company has taken error to this court.

The evidence is clear and undisputed that Johnson was never in the employ of the Blanke Tea & Coffee Co., either as agent or otherwise; but it is sought to hold that company upon the ground that it, through Spies & Co., knowingly permitted Johnson to be placed in a situation in Omaha, as agent, so that persons of ordinary prudence, conversant with business usages and the nature of the particular business in which Johnson was acting, were justified in presuming that he had authority to perform the acts done by him and to bind the Blanke company thereby. The facts upon which the claim is based are as follows: Johnson used two forms of letterheads. One form gave the location of branch houses of the Blanke Tea & Coffee Co., as follows: 118 East 14th St., New York; 42 & 44 Michigan Ave., Chicago; and 522 Delaware St., Kansas City and the name of J. W. Johnson, agent in Nebraska. The other form gave the location of branch houses the same as above, together with the name of J. W....